Thursday, April 09, 2020

Gosnell: The Untold Story - Chapter 2, Politics and the SCOTUS

My quarantine reading is the audiobook of Gosnell: The Untold Story of America's Most Prolific Serial Killer, by Ann McElhinney and Phelim McAleer. At the bottom of this post are links to commentaries I've written so far.

All the Way Up to the Governor

Gosnell got away with murder for as long as he did because Governor Tom Ridge ordered a hands-off policy towards abortionists. As I mentioned in "Anger and Law-Breaking," it behooves abortionists to have friends in high places. George Tiller was able to get away with perpetrating illegal late term abortions because of his connections, including a close relationship with Governor Kathleen Sebelius. Kansas medical board is comprised of political appointees. Is it any wonder that people who owed their positions to Sebelius wouldn't want to anger somebody who was feeding a lot of money into her campaign chests? The amount of political corruption associated with abortion is unknown because we only find it when we have a reason to dig. (This leads me to wonder how much connection there is between media decision-makers and abortionists.)

The amount of corruption and enabling that takes place is one of the reasons I think we need to switch to the "Right to Redress" paradigm first proposed by David Reardon and Feminists for Life in the late 1980s. I think the specifics that Reardon and FFL proposed were awkward and unworkable but the principle is sound: Put the power in the hands of the women and their families. 


I'm flabbergasted that both Joann Pescatore and Christine Wexler were flabbergasted that elective abortions are legal until 24 weeks in Pennsylvania. Roe v. Wade was handed down in 1973. "Hands off abortion during the first two trimesters, and you'd better have loopholes for the last trimester" has been a Supreme Court mandate for half a century. Not knowing that abortions are legal for the first six months of pregnancy in all states is, to me, akin to not knowing that 16-year-olds are allowed to drive cars. What planet have you been on? How can you have lived through even the most superficial news coverage all of your adult life and not remember at some point hearing about how the mean, vicious, woman-hating right-to-lifers are trying to ban post-viability abortions, or "partial-birth abortions," or abortions after 20 weeks, or so on? If this is a fact that's shocking to you, wouldn't you have been shocked the first time the idea ran past your ears or eyes?

I still remember decades ago hearing a co-worker who was on the phone over lunch. I have no idea how the topic came up but she was telling the person that she was talking to that abortions are only legal in Pennsylvania for the first 12 weeks. I opened the phone book to the Yellow Pages listings for the two abortion clinics in town. Both had large ads. Both openly advertised elective abortions to 24 weeks. I pointed. Susan looked, scowled at me, and continued her conversation. Later I again heard her telling somebody that abortions are only legal in Pennsylvania for the first 12 weeks. There has to be something seriously weird going on in somebody's head to be that good at tuning out an open and obvious fact. 

I think it goes to what you want to believe. If you want to be pro-choice, and want to believe that you're only in favor of letting "tissue" get removed, then you have to tune out that this is not, in fact, what you're actually supporting when you back pro-choice rhetoric, organizations, and candidates.

Third Trimester "Life or Health" Exceptions

Roe v. Wade held that states could, if they chose, ban third trimester abortions as long as they still permitted them for the life or health of the mother. The Justices did not define "health" in Roe." Instead, they issued a companion decision, Doe v. Bolton, which defined "health" so broadly that really, any reason is a good enough reason:

We agree ... that the medical judgment may be exercised in the light of all factors --physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

There it is in a nutshell. If the woman says that the abortion will be for her benefit, then it qualifies as a "health" of the mother abortion.

Planned Parenthood v. Casey was the first case in which the Supreme Court decided that the states could tighten up "health" a tad if they chose. But they don't have to. The Doe v. Bolton standard of "If she says the abortion would be beneficial, that's good enough" can still be the standard, or the states can have no health standard at all.

The Pennsylvania Abortion Control Act still technically permits abortions of babies of 24 or more weeks of gestation only under tight conditions:

Abortion on unborn child of 24 or more weeks gestational age.
(a)  Prohibition.--Except as provided in subsection (b), no person shall perform or induce an abortion upon another person when the gestational age of the unborn child is 24 or more weeks.
(b)  Exceptions.--
(1)  It shall not be a violation of subsection (a) if an abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman. No abortion shall be deemed authorized under this paragraph if performed on the basis of a claim or a diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible impairment of a major bodily function. 
(c)  Abortion regulated.--Except in the case of a medical emergency which, in the reasonable medical judgment of the physician performing the abortion, prevents compliance with a particular requirement of this subsection, no abortion which is authorized under subsection (b)(1) shall be performed unless each of the following conditions is met:
(1)  The physician performing the abortion certifies in writing that, based upon his medical examination of the pregnant woman and his medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.
(2)  Such physician's judgment with respect to the necessity for the abortion has been concurred in by one other licensed physician who certifies in writing that, based upon his or her separate personal medical examination of the pregnant woman and his or her medical judgment, the abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.
(3)  The abortion is performed in a hospital.
(4)  The physician terminates the pregnancy in a manner which provides the best opportunity for the unborn child to survive, unless the physician determines, in his or her good faith medical judgment, that termination of the pregnancy in that manner poses a significantly greater risk either of the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman than would other available methods.
(5)  The physician performing the abortion arranges for the attendance, in the same room in which the abortion is to be completed, of a second physician who shall take control of the child immediately after complete extraction from the mother and shall provide immediate medical care for the child, taking all reasonable steps necessary to preserve the child's life and health.

The exception has to be there in order to pass muster under Roe, which mandates a "health" exception. Roe mandates this even though post-viability abortion for maternal health is a nonsensical concept. (In fact, the Supreme Court created the idea of a post-viability abortion judicially in Roe; up until then abortion was, by definition, done prior to viability.) If the mother's life is endangered by the pregnancy after viability, you take whatever steps are necessary to end the pregnancy. You don't spend time subjecting the mother to additional procedures to kill the fetus first. Section C is just a fancy way of saying, "No, you can't claim medical necessity, kill the baby with a lethal injection,  then leave the patient in a motel room for three days with her mom or partner monitoring her until she expels the dead baby into a toilet." No Tiller Loophole here. (For more about how Tiller got away with his illegal third-trimester abortion practice, read "Tiller defense: Larry said I could," "Tiller Trial: The plot thickens," and "Tiller Trial: Will Dr. McHugh testify?")

Prior posts:

No comments: